Why the Supreme Court Must Change

Article III, Section I of the Constitution of the United States outlines the creation of the third branch of government: the judiciary. This branch is potentially the most powerful of the three considering it has the ability to strike down laws or orders made by either of the other bodies. It would make sense that the founders would dedicate a large portion of their time making sure each detail is closely checked and double-checked. It would also make sense that something this momentous and radical would be the most read and reread portion of the entire document.

Article III, Section I is two sentences long.

“The judicial power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” Is the defining sentence in this section. In essence, the constitution calls for the creation of a Supreme Court, as well as all the other courts that Congress can come up with “from time to time.”

In 1789, this could be considered a stroke of genius. The United States at that moment was a relatively new country, powerful states vied against one another for legal superiority and influence. Having one impartial “supreme” court that everyone could agree upon would go to great lengths to mend the myriad of complex issues involved in the creation of a new state. That being said, the court didn’t actually gain its most important power, that of judicial review, until Marbury v. Madison in 1803. The power to strike down laws considered unconstitutional is the most fundamental power associated with the Supreme Court today, and it often leads to rulings that intersect policy and social issues. The framers never enumerated this power, instead electing to leave it implied, but it has nevertheless stood as a pillar of the third branch of government.

The Constitution itself is both a deeply flawed and deeply laudable document. This relatively short set of rules outlining the formation of the state has been the bedrock on which one of the wealthiest and most powerful countries in history was built. Simultaneously, the relatively vague language leaves room for inconsistencies and can potentially be exploited by unscrupulous politicians. This is why the justices are appointed by one branch, confirmed by another, and hold lifetime appointments. In this way they are able to stay above the political fray and concentrate on generating impartial rulings.

Well, in theory.

The Supreme Court from the outset was beset on all sides by those who weren’t keen on its rulings. Indeed, even Marbury v. Madison was met with controversy considering the Chief Justice at the time had also been intimately involved in the creation of the case in the first place. And in the centuries since there have been numerous divisive rulings. Some like Dred v. Scottwould even play an important role in the creation of the Civil War. All of this is said to show that the Supreme Court has at once been both extremely important and extremely divisive because of, not despite, its formation. No remotely competent student of civics would suggest that justices are impartial, if only because the confirmation process is carried out through inherently political means. Of course, there’s the unspoken rule of bipartisanship, but there’s no law saying it must be so. There’s an unspoken rule of impartiality on the part of judges, but one can clearly map the left-right shifts of the court with surprising consistency just by looking at the party behind the judge’s nomination. Furthermore, it has been noted that in a vast majority of cases, there has to be both considerable ideological discrepancies and questionable qualifications for a senator to oppose a nomination by the president if they are of the same party.

The Roberts Court in 2017, before Anthony Kennedy retired in June of this year and was replaced by Brett Kavanaugh (Image)

So what does all this mean? We have a Supreme Court that has been consistently divisive over the last 200 years. It pretends to be impartial while being inherently subservient to a political process both during and after a confirmation. After all, the Constitution does grant Congress the ability to impeach a justice if they do not follow “good behavior.” Our founding fathers were simply a group of politicians trying to bring stability to a new country. The establishment of the Supreme Court was meant to be a mere tool in developing democracy, and they could not have foreseen that the highest court in the land would be tasked with answering the most controversial moral debates 231 years later. This method is a deeply partisan selection process run by aristocrats. The median personal wealth of members of Congress is $1.1 million; of presidents, $10 million. Meanwhile, the median personal wealth of an American citizen sits at $56,000.

The recent nomination of Brett Kavanaugh to the bench seems to corroborate these issues of elitism, polarization, and general divisiveness long-provoked by the Supreme Court itself. The circus that surrounded his nomination is the perfect example of these underlying hypocritical processes coming to light in a dramatic fashion. The Supreme Court is a flawed but absolutely necessary system. This country requires such an institutionalized and legitimate judiciary body at the highest level to interpret our Constitution; nothing would get done in its absence. Still, things don’t have to be the way they are simply because that’s the way they’ve been. Altering the age-old institution of the Supreme Court would be no small task, but, like any manifestation of government, there’s always room for improvement.